As we reported in the December 2012/January 2013 issue of the Immigration eAuthority, the filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2014 begins on Monday, April 1, 2013. The initial filing date for petitions seeking H-1B status with an effective date of October 1, 2013 is Friday, March 29, 2013. (Petitions actually need to be mailed on March 29 to secure receipt by the U.S. Citizenship and Immigration Services (USCIS) on April 1.)
Employers should identify current and future employees who will need H-1B status to be legally employed. Individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B from another work status (such as L-1, TN or E-3), and individuals outside of the United States commonly require new, cap-subject H-1Bs.
A total of 85,000 new H-1Bs are made available each government fiscal year—65,000 under the “regular cap” and 20,000 under the “Master’s cap” for those with advanced degrees from U.S. universities and colleges.
In previous years, the annual limit for new H-1Bs was exceeded within the first few days of filing, resulting in a random, computer-generated lottery for available visa numbers. However, between FY 2010 and FY 2012, the cap was reached later in the year, anywhere between the months of October and January.
Given that the cap hit a few months earlier in FY 2013 than in the previous three fiscal years and, as the economy continues to improve, it is important that employers file all new H-1B petitions when the H-1B quota opens by mailing cap-subject petitions on Friday, March 29, 2013 or Saturday, March 30, 2013 for next-business-day delivery to USCIS on April 1, 2013. Cap-subject cases must be received by USCIS no later than Friday, April 5, 2013 to be considered as having been filed within the first five business days of the filing period. Under USCIS regulations, if a sufficient number of petitions to reach the cap is received in the first five business days of the filing season—Monday, April 1, 2013 through Friday, April 5, 2013—USCIS runs a lottery to determine the cases that are awarded quota numbers.
As no one can tell what the demand for H-1Bs will be on April 1 of this year and thereafter, we strongly advise employers to immediately begin identifying persons for whom H-1B sponsorship will be needed and to contact the Ogletree Deakins attorney with whom you normally work to initiate any new H-1B petitions as soon as possible. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA).